madison.com | | Posted: Thursday, December 22, 2011 2:15 pm
Dane County's district attorney, who filed a lawsuit challenging Wisconsin's law passed earlier this year effectively ending collective bargaining rights for most public workers, said Thursday he is considering asking the state Supreme Court to rehear the case.
Ismael Ozanne said he was looking at making the request after learning that Supreme Court Justice Michael Gableman had received free legal services from a firm that defended the law in that case decided in June.
Gableman was part of a four-justice majority that upheld the law, which generated massive opposition protests earlier this year and made Wisconsin the center of the national fight over union rights.
There's no guarantee the court would agree to rehear the case even if Gableman did not participate in making that decision. If no other justice changed their opinion on the case, a 3-3 deadlock would be possible and it would not be heard again.
Ozanne said he didn't have a timeline for deciding whether to make the request, but he was looking into the facts related to Gableman's involvement with the law firm that helped defend the collective bargaining law.
Whether a rehearing is sought "depends on what all the facts are," Ozanne said. "We have some of them, but not all."
Gableman retained the law firm of Michael Best and Friedrich to defend him in a 2008 ethics case that related to an ad he ran in his successful campaign for the state's highest court. Gableman signed a contingency agreement with the law firm that resulted in him paying out of pocket expenses, but required him to pay attorneys' fees only if he prevailed and could persuade the state to pay the costs.
The Supreme Court deadlocked 3-3 on the charges that Gableman violated the ethics code, which meant he did not win and could not seek reimbursement for his legal fees from the state claims board.
Michael Best also defended the state in the collective bargaining lawsuit.
Eric McLeod, a Michael Best attorney who represented Gableman and also assisted in the defense of the collective bargaining law, did not immediately return a call seeking comment Thursday.
Gableman has declined repeated requests to comment made through a court spokesman.
Madison lawyer Lester Pines, who represented state Sen. Mark Miller in the open meetings lawsuit, said Ozanne has "every right" to ask the court to rehear the case.
"(McLeod) himself was appearing before the court in that case and nobody knew" about Gableman's free legal representation by McLeod, Pines said. "That's a very big deal."
Dana Brueck, spokeswoman for the state Department of Justice, which opposed Ozanne's open meetings lawsuit in court, said DOJ would respond to the issue if something is filed in court.
Ozanne argued in the collective bargaining case that the bill should not go into effect because a Republican-controlled committee of lawmakers broke the state's open meetings law by voting on the bill without the required notice to the public.
But the court, in its 4-3 ruling, said legislative rules trumped the open meetings law and said passage of the bill was legal.
A government watchdog group, the Wisconsin Democracy Campaign, as well as Democratic state Rep. Gary Hebl have asked the state Judicial Commission and the Government Accountability Board, which enforces campaign finance and ethics laws, to investigate Gableman.
Since the law firm started representing Gableman in 2008, he participated in nine cases involving Michael Best clients. Gableman ruled in those clients' favor in five of those cases, including the collective bargaining lawsuit.
There are five pending cases before the court with Michael Best clients.
On Thursday, a motion was filed seeking Gableman's recusal in another case in which Republicans are seeking to have new legislative district boundaries enacted for possible recall elections next year. Michael Best represented Republicans in the drawing of those new lines as part of the once-a-decade task of redistricting.
Attorney Jeremy Levinson argues in the motion filed on behalf of Democrats seeking to recall Republicans that given Gableman's relationship with Michael Best, he should not be allowed to participate in that case.
"Justice Gableman has put himself at the center of a constellation of profound and difficult facts and circumstances that compel him to refrain from participating," Levinson argued.
A group of Republican citizens filed the lawsuits, asking the Supreme Court to either appoint a panel of judges or hear the case directly. The Republicans argue that the new GOP-friendly boundaries should take effect for any recall elections, which would make it more difficult for Democrats to succeed.
Petitions are currently being circulated targeting four incumbent Republican state senators for recall. Under the redistricting law as passed, the new boundaries would not take effect until the November election.
Michael Best initially represented the Republicans in the pending cases, but have since withdrawn as their attorneys.
? State Journal reporter Ed Treleven contributed to this report.
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